United States ex rel. Toth v. Quarles/Opinion of the Court

After serving with the United States Air Force in Korea, Robert W. Toth was honorably discharged. He returned to his home in Pittsburgh and went to work in a steel plant. Five months later he was arrested by military authorities on charges of murder and conspiracy to commit murder while an airman in Korea. At the time of arrest he had no relationship of any kind with the military. He was taken to Korea to stand trial before a court-martial under authority of a 1950 Act of Congress. The Court of Appeals, 94 U.S.App.D.C. 28, 215 F.2d 22, sustained the Act, rejecting the contention that civilian ex-servicemen like Toth could not constitutionally be subjected to trial by court-martial. We granted certiorari to pass upon this important constitutional question. United States ex rel. Toth v. Talbott, 348 U.S. 809, 75 S.Ct. 39.

The 1950 Act cannot be sustained on the constitutional power of Congress 'To raise and support Armies', 'To declare War', or to punish 'Offenses against the Law of Nations.' Art. 1, § 8. And this assertion of military authority over civilians cannot rest on the President's power as commander-in-chief, or on any theory of martial law. See Ex parte Milligan, 4 Wall. 2, 124-127, 18 L.Ed. 281. The Government's contention is that the Act is a valid exercise of the power granted Congress in Article I of the Constitution 'To make Rules for the Government and Regulation of the land and naval Forces', as supplemented by the Necessary and Proper Clause.

This Court has held that the Article I clause just quoted authorizes Congress to subject persons actually in the armed service to trial by court-martial for military and naval offenses. Later it was held that court-martial jurisdiction could be exerted over a dishonorably discharged soldier then a military prisoner serving a sentence imposed by a prior court-martial. It has never been intimated by this Court, however, that Article I military jurisdiction could be extended to civilian ex-soldiers who had severed all relationship with the military and its institutions. To allow this extension of military authority would require an extremely broad construction of the language used in the constitutional provision relied on. For given its natural meaning, the power granted Congress 'To make Rules' to regulate 'the land and naval Forces' would seem to restrict court-martial jurisdiction to persons who are actually members or part of the armed forces. There is a compelling reason for construing the clause this way: any expansion of court-martial jurisdiction like that in the 1950 Act necessarily encroaches on the jurisdiction of federal courts set up under Article III of the Constitution where persons on trial are surrounded with more constitutional safeguards than in military tribunals.

Article III provides for the establishment of a court system as one of the separate but coordinate branches of the National Government. It is the primary, indeed the sole business of these courts to try cases and controversies between individuals and between individuals and the Government. This includes trial of criminal cases. These courts are presided over by judges appointed for life, subject only to removal by impeachment. Their compensation cannot be diminished during their continuance in office. The provisions of Article III were designed to give judges maximum freedom from possible coercion or influence by the executive or legislative branches of the Government. But the Constitution and the Amendments in the Bill of Rights show that the Founders were not satisfied with leaving determination of guilt or innocence to judges, even though wholly independent. They further provided that no person should be held to answer in those courts for capital or other infamous crimes unless on the presentment or indictment of a grand jury drawn from the body of the people. Other safeguards designed to protect defendants against oppressive governmental practices were included. One of these was considered so important to liberty of the individual that it appears in two parts of the Constitution. Article III, § 2, commands that the 'Trial of all Crimes, except in Cases of Impeachment, shall be by Jury * *  * .' And the Sixth Amendment provides that 'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed *  *  * .' This right of trial by jury ranks very high in our catalogue of constitutional safeguards.

We find nothing in the history or constitutional treatment of military tribunals which entitles them to rank along with Article III courts as adjudicators of the guilt or innocence of people charged with offenses for which they can be deprived of their life, liberty or property. Unlike courts, it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise. But trial of soldiers to maintain discipline is merely incidental to an army's primary fighting function. To the extent that those responsible for performance of this primary function are diverted from it by the necessity of trying cases, the basic fighting purpose of armies is not served. And conceding to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, it still remains true that military tribunals have not been and probably never can be constituted in such way that they can have the same kind of qualifications that the Constitution has deemed essential to fair trials of civilians in federal courts. For instance, the Constitution does not provide life tenure for those performing judicial functions in military trials. They are appointed by military commanders and may be removed at will. Nor does the Constitution protect their salaries as it does judicial salaries. Strides have been made toward making courts-martial less subject to the will of the executive department which appoints, supervises and ultimately controls them. But from the very nature of things, courts have more independence in passing on the life and liberty of people than do military tribunals.

Moreover, there is a great difference between trial by jury and trial by selected members of the military forces.

It is true that military personnel because of their training and experience may be especially competent to try soldiers for infractions of military rules. Such training is no doubt particularly important where an offense charged against a soldier is purely military, such as disobedience of an order, leaving post, etc. But whether right or wrong, the premise underlying the constitutional method for determining guilt or innocence in federal courts is that laymen are better than specialists to perform this task. This idea is inherent in the institution of trial by jury.

Juries fairly chosen from different walks of life bring into the jury box a variety of different experiences, feelings, intuitions and habits. Such juries may reach completely different conclusions than would be reached by specialists in any single field, including specialists in the military field. On many occasions, fully known to the Founders of this country, jurors-plain people-have manfully stood up in defense of liberty against the importunities of judges and despite prevailing hysteria and prejudices. The acquittal of William Penn is an illustrious example. Unfortunately, instances could also be cited where jurors have themselves betrayed the cause of justice by verdicts based on prejudice or pressures. In such circumstances independent trial judges and independent appellate judges have a most important place under our constitutional plan since they have power to set aside convictions.

The 1950 Act here considered deprives of jury trial and sweeps under military jurisdiction over 3,000,000 persons who have become veterans since the Act became effective. That number is bound to grow from year to year; there are now more than 3,000,000 men and women in uniform. These figures point up what would be the enormous scope of a holding that Congress could subject every ex-serviceman and woman in the land to trial by court-martial for any alleged offense committed while he or she had been a member of the armed forces. Every veteran discharged since passage of the 1950 Act is subject to military trial for any offense punishable by as much as five years' imprisonment unless the offense is now punishable in a civilian court. And one need only glance at the Military Code to see what a vast number and variety of offenses are thus brought under military jurisdiction. Included within these are crimes such as murder, conspiracy, absence without leave, contempt toward officials, disrespect toward superior officers, willful or neglectful loss, damage, or destruction of government property, making false official statements, dueling, breach of the peace, forgery, fraud, assault, and many others. It is true that with reference to some of these offenses, very minor ones, veterans cannot now be tried because of a presidential order fixing the punishment for such offenses at less than five years. But that amelioration of the Military Code may be temporary, since punishment can be raised or lowered at the will of the President. It is also true that under the present law courts-martial have jurisdiction only if no civilian court does. But that might also be changed by Congress. Thus there is no justification for treating the Act as a mere minor increase of congressional power to expand military jurisdiction. It is a great change, both actually and potentially.

Fear has been expressed that if this law is not sustained discharged soldiers may escape punishment altogether for crimes they commit while in the service. But that fear is not warranted and was not shared by the Judge Advocate General of the Army who made a strong statement against passage of the law. He asked Congress to 'confer jurisdiction upon Federal courts to try any person for an offense denounced by the (military) code if he is no longer subject thereto. This would be consistent with the fifth amendment of the Constitution.' The Judge Advocate General went on to tell Congress that 'If you expressly confer jurisdiction on the Federal courts to try such cases, you preserve the constitutional separation of military and civil courts, you save the military from a lot of unmerited grief, and you provide for a clean, constitutional method for disposing of such cases.' It is conceded that it was wholly within the constitutional power of Congress to follow this suggestion and provide for federal district court trials of discharged soldiers accused of offenses committed while in the armed services. This concession is justified. U.S.Const. Art. III, § 2; and see, e.g., Jones v. United States, 137 U.S. 202, 211-212, 11 S.Ct. 80, 83, 34 L.Ed. 691; United States v. Bowman, 260 U.S. 94, 97-98, 43 S.Ct. 39, 40-41, 67 L.Ed. 149; Skiriotes v. Florida, 313 U.S. 69, 73-74, 61 S.Ct. 924, 927-928, 85 L.Ed. 1193. There can be no valid argument, therefore, that civilian ex-servicemen must be tried by court-martial or not tried at all. If that is so it is only because Congress has not seen fit to subject them to trial in federal district courts.

None of the other reasons suggested by the Government are sufficient to justify a broad construction of the constitutional grant of power to Congress to regulate the armed forces. That provision itself does not empower Congress to deprive people of trials under Bill of Rights safeguards, and we are not willing to hold that power to circumvent those safeguards should be inferred through the Necessary and Proper Clause. It is impossible to think that the discipline of the Army is going to be disrupted, its morale impaired, or its orderly processes disturbed, by giving exservicemen the benefit of a civilian court trial when they are actually civilians. And we are not impressed by the fact that some other countries which do not have our Bill of Rights indulge in the practice of subjecting civilians who were once soldiers to trials by courts-martial instead of trials by civilian courts.

There are dangers lurking in military trials which were sought to be avoided by the Bill of Rights and Article III of our Constitution. Free countries of the world have tried to restrict military tribunals to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service. Even as late as the Seventeenth Century standing armies and courts-martial were not established institutions in England. Court-martial jurisdiction sprang from the belief that within the military ranks there is need for a prompt, ready-at-hand means of compelling obedience and order. But Army discipline will not be improved by court-martialing rather than trying by jury some civilian ex-soldier who has been wholly separated from the service for months, years or perhaps decades. Consequently considerations of discipline provide no excuse for new expansion of court-martial jurisdiction at the expense of the normal and constitutionally preferable system of trial by jury.

Determining the scope of the constitutional power of Congress to authorize trial by court-martial presents another instance calling for limitation to 'the least possible power adequate to the end proposed.' We hold that Congress cannot subject civilians like Toth to trial by court-martial. They, like other civilians, are entitled to have the benefit of safeguards afforded those tried in the regular courts authorized by Article III of the Constitution.

Reversed.

Mr. Justice REED, with whom Mr. Justice BURTON and Mr. Justice MINTON join, dissenting.